In re Probate Proceeding, Will of Sook Li
| Decision Date | 20 July 2021 |
| Parties | In the Matter of the Probate Proceeding, Will of Sook Li a/k/a Sook Jing Li, Deceased. |
| Court | New York Surrogate Court |
Attorney for petitioners: Andrew K. Brotmann, Esq. The Brotmann Law Group
Attorney for objectant: Supriya Kichloo, Esq. Gordon & Gordon PC
Peter J. Kelly, S.
In this contested probate proceeding, objectant, Suey Quon Li (Suey) moves for summary judgment dismissing the petition and denying probate of the propounded instrument. Petitioners Sau Kwan Li (Sau) and Jin Koon Li (Jin), oppose the motion and cross move for summary judgment dismissing the objections and admitting the instrument to probate
Decedent, Sook Li, also known as Sook Jing Li, died on October 4, 2017 at the age of 89 years. She was survived by her three children: son Jin, and daughters Sau and Suey.
The instrument offered for probate was executed on February 8, 2013, when the decedent was 84 years of age. The instrument was prepared by an attorney, (AS), who also supervised its execution. The three page instrument bears what purports to be the decedent's signature at the end and the initials SL on each page. There is an attestation clause and the signatures of two witnesses, namely, the drafter's father, attorney (RS), who was a partner in the office, and the office receptionist. Annexed to the instrument is a self-proving affidavit of the two witnesses dated the same day and notarized by AS.
Pursuant to the instrument, Jin and Suey are each bequeathed the sum of one thousand dollars ($1, 000.00), and the remainder of decedent's estate is devised and bequeathed to Sau, if she survives, otherwise to Jin's two sons. The instrument contains an in terrorem clause, as well as an acknowledgment of the unequal provisions for Jin and Suey, stating that they received material benefits during decedent's lifetime. Jin and Sau are nominated as co-executors.
The main asset of the estate appears to be a three family house in which all parties had resided with the decedent, and in which petitioners continue to reside.
The propounded instrument differs from an earlier purported will of the decedent dated seven years earlier in 2006, which AS also drafted and supervised. Pursuant to the provisions of that instrument, all three of the decedent's children are treated equally and are nominated as the executors. Of note, Sau is one of the two subscribing witnesses to that document.
The decedent appears to have executed an even earlier instrument in 1995, which was prepared and its execution supervised by an attorney from a firm not associated with AS or RS. That purported will differs from the later ones, in that in addition to its provisions for the decedent's present children, it provided for a trust and a continued residence for the needs of the decedent's fourth and youngest child, Wai Kwan, who was ill at the time, and who eventually predeceased the decedent. Of significance, the attestation clause and annexed affidavit of witnesses in this document indicate that the decedent declared the instrument as her will through one of the three witnesses who acted as an interpreter.
Examinations of attorney AS and the two attesting witnesses were conducted pursuant to SCPA 1404. Depositions of petitioners and objectant were also taken.
Pursuant to her verified objections, objectant alleges: (i) the February 8, 2013 paper writing is not decedent's last will; (ii) the paper writing was not duly executed; (iii) decedent lacked testamentary capacity at the time of execution; (iv) the paper writing is the product of undue influence; (v) the paper writing is the product of fraud; and (vi) the propounded instrument was subsequently revoked.
Petitioners and objectant each assert entitlement to summary judgment.
Summary judgment may be granted only when it is clear that no triable issue of fact exists (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Phillips v Joseph Kantor & Co., 31 N.Y.2d 307, 311 [1972]; Mosheyev v Pilevsky, 283 A.D.2d 469 [2d Dept 2001]). The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist (see Ferrante v American Lung Ass'n., 90 N.Y.2d 623, 631 [1997]; Owens v City of New York, 183 A.D.3d 903, 906 [2d Depart 2020]; Dykeman v Heht, 52 A.D.3d 767, 769 [2d Dept 2008]).
Notwithstanding the differing burdens of proof at trial, it is well settled that on a motion for summary judgment the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). If the proponent makes out a prima facie showing, the burden of going forward shifts to the opponent to assemble and lay bare affirmative proof to establish the existence of a genuine triable issue of fact (see Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 [2014]; Stainless, Inc. v Employers Fire Ins. Co., 69 A.D.2d 27, 32 [1st Dept 1979], affd 49 N.Y.2d 924 [1980]).
The papers submitted in support of and in opposition to the motion are scrutinized in a light most favorable to the party opposing the motion (see Lau v Margaret E. Pescatore Parking, Inc., 30 N.Y.3d 1025, 1027 [2017]; Robinson v Strong Memorial Hosp., 98 A.D.2d 976 [4th Dept 1983]; Gitlin v Chirinkin, 98 A.D.3d 561, 561-562 [2d Dept 2012]). If there is any doubt as to the existence of a triable issue of fact, the motion must be denied (see Fairlane Fin. Corp. v Longspaugh, 144 A.D.3d 858, 859 [2d Dept 2016]; Dykeman v Heht, 52 A.D.3d 767 at 769).
Objectant's motion for summary judgment is supported by affirmation of counsel and a Memorandum of Law; a copy of the propounded instrument; a copy of the objections; and the transcripts of the SCPA 1404 examinations of the drafting-supervising attorney and two attesting witnesses. The motion is also supported by various other exhibits, including email correspondence between AS and Sau; a check, dated February 8, 2013, by Sau payable to AS; medical records from Queens Blvd. Extended Care, Fairview Nursing Care Center and Dr. Edward Chai; and copies of prior wills dated May 10, 2006 and January 31, 1995.
The cross-motion is supported by affirmation of petitioners' counsel and a Memorandum of Law in Opposition to Motion for Summary Judgment and in Support of Cross-Motion for Summary Judgment; a copy of the purported will; the SCPA 1404 transcripts previously referenced, as well as the deposition transcripts of the testimony of the petitioners and objectant; the previously referenced email communication; progress notes from Weill Cornell Internal Medicine Associates; an unsworn letter dated May 21, 2013 by Judy Tung, MD; and an affidavit in support of the petition by Judy Tang, MD, dated April 23, 2019.
Also submitted is a Reply Memorandum in support of objectant's motion and in opposition to petitioners' cross-motion.
As to the use of the deposition testimony of the parties, to the extent they relate personal communications or transactions with decedent which would be precluded pursuant to CPLR 4519, they may not be used to support their respective motions for summary judgment. Such testimony may be utilized, however, to defeat a motion for summary judgment (see Phillips v Joseph Kantor & Co., 31 N.Y.2d 307, 313-314 [1972]; Mantella v Mantella, 268 A.D.2d 852, 853 [3d Dept 2000]), and have been considered to that limited extent.
Initially it is noted that objectant only addresses the objections alleging the paper writing was not duly executed, the lack of testamentary capacity, and undue influence. With respect to the remaining objections, no evidence has been offered of a later instrument or that the propounded will was revoked, nor has objectant produced any evidence in support of the affirmative objection alleging fraud. [1] Having moved for summary judgment without presenting evidence supporting those objections, and upon searching the record, summary dismissal of those objections is warranted. Accordingly, objections First, Fifth and Sixth are dismissed.
On the issue of due execution, for a will to be duly executed, the requirements of the statute of wills as set forth in EPTL 3-2.1 must be satisfied. The instrument must be signed by the testator at the end; the testator must sign or acknowledge the signature in the presence of each of the attesting witnesses; the testator must declare to each attesting witness that the instrument is his/her will; there must be at least two attesting witnesses who, at the testator's request, sign their names and affix their addresses at the end of the instrument (see EPTL 3-2.1[a][1]-[4]; Matter of Walker, 124 A.D.3d 970, 971 [3d Dept 2015]).
Where an attorney-drafter supervises the execution of the instrument, there is a presumption of regularity that the instrument was properly executed in all respects (see Matter of Hadden, 188 A.D.3d 686, 687 [2d Dept 2020]; Matter of Farrell, 84 A.D.3d 1374 [2d Dept 2011]; Matter of Moskoff, 41 A.D.3d 481, 482 [2d Dept 2007]). A presumption of compliance with the statutory requirements also arises where the propounded instrument contains an attestation clause and self proving affidavit, even where the witnesses are unable to recollect the execution or what took place at the time (see Matter of Collins, 60 N.Y.2d 466, 470 [1983]; Matter of Green, 89 A.D.3d 941, 943 [2d Dept 2011]; Matter of Finocchio, 270 A.D.2d 418, 418-419 [2d Dept 2000]).
Here the execution of the instrument was supervised by an attorney, it contains an attestation clause, and a self proving affidavit of the witnesses and transcripts...
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